Legal Commentary

A Thought from Prof. Michael McConnell

By Eugene Volokh

Stanford law professor (and former judge) Michael McConnell, who represented the Christian Legal Society before the Supreme Court in Christian Legal Society v. Martinez, e-mails this:

I had a mischievous thought, which I thought I would offer to your blog:

I have a suggestion for the City of New York City, if it wishes to resolve the Ground Zero Mosque controversy in accordance with our constitutional traditions. It could require that the leadership of any nonprofit organization using city streets or water within the 9?11 zone be open to ?all comers, without discrimination based on status or belief.? We have it on good authority that this is a neutral policy, violating no one?s First Amendment rights. Christian Legal Society v. Martinez. Lower Manhattan would be as free as a public university campus. The City could congratulate itself for promoting ?tolerance? and ?diversity? ? without having to put up with those pesky Muslims. Who could possibly object?

UPDATE: Note that the ?suggestion? (which is of course a criticism of the Court?s decision in Christian Legal Society, not of the proposed mosque) relates to requiring that the leadership of the organization be open to all comers. The mosque would thus be excluded even if it welcomed everyone to attend, so long as it limited its leadership to coreligionists (as any religious group surely must). The policy in Christian Legal Society in fact required such open access to student group leadership, not just to attendance at student group functions.

Full post as published by The Volokh Conspiracy on August 18, 2010 (boomark / email).